Abraham v. Leigh et al

Filing 539

OPINION AND ORDER re: 400 LETTER MOTION to Seal Document 395 Letter, 399 Letter, 398 Letter, 397 Letter, 396 Letter addressed to Judge Katherine Polk Failla from Colleen Ni Chairmhaic, former counsel for Plaintiff d ated 11/6/2019. filed by Colleen M Ni Chairmhaic, 407 MOTION for Attorney Fees filed by Abby Leigh. For the reasons set forth in this Opinion and Order, the Court sanctions Plaintiff and awards to Defendant Leigh attorneys' fees in the amount of $52,507.50 and costs in the amount of $637.10. Plaintiff is directed to pay this sanction to Defendant Leigh, in care of her attorneys, within 30 days of the date of this Opinion and Order. The Clerk of Court is directed t o terminate the motion at docket entry 407. In addition, the Court observes that an open motion at docket entry 400 was previously resolved, and it thus directs the Clerk of Court to terminate that motion as well. (Signed by Judge Katherine Polk Failla on 9/14/2020) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBYN ABRAHAM,
Plaintiff,
17 Civ. 5429 (KPF)

v.
ABBY LEIGH, as Executrix of the Estate of
Mitch Leigh,

OPINION AND ORDER

Defendant.
KATHERINE POLK FAILLA, District Judge: 1
In an oral decision issued on October 22, 2019, the Court granted in part
a motion for sanctions against Plaintiff Robyn Abraham that had been brought
by Defendant Abby Leigh in her capacity as Executrix of the Estate of Mitch
Leigh. 2 After finding that Plaintiff had not only fraudulently doctored certain
documents to improve her position in this litigation, but also perjured herself,
the Court excluded from evidence 33 documents (the “Sanctioned Documents”)
produced by Plaintiff during discovery. The Court also ordered that Plaintiff
pay Defendant’s attorneys’ fees and costs incurred as a result of the
Sanctioned Documents. Defendant submitted a fee petition, and Plaintiff filed
objections to that petition. For the reasons set forth in the remainder of this
Opinion, the Court awards Defendant attorneys’ fees in the amount of
$52,507.50 and costs in the amount of $637.10.

1

The caption has been modified to reflect the parties to the instant application.

2

For clarity, the Court uses “Mr. Leigh” to refer to Mitch Leigh and “Defendant” to refer to
Abby Leigh.

BACKGROUND 3
A.

Factual Background
According to Plaintiff, on January 23, 2014, she and Mitch Leigh,

composer of the musical Man of La Mancha (“MOLM”), agreed to a “Six (6)
Month Exclusive Contract Re: London and United Kingdom Musical and Stage
Production Rights of Man of La Mancha” (the “Talent Agreement”), pursuant to
which Plaintiff was to solicit and secure interest in a revival of the musical by
top-notch talent and production personnel. (Am. Compl. ¶¶ 1, 47-48). In
exchange, Mr. Leigh agreed to grant Plaintiff “the sole and exclusive legal and
business rights” to produce MOLM in London, tour the U.K., and transfer to
Broadway with all industry standard U.S. touring and ancillary rights. (Id. at
¶ 48).
Plaintiff further alleged that by February 26, 2014, she had satisfied her
performance obligations under the Talent Agreement by securing an approved
director and co-producer (the “Talent”). (Am. Compl. ¶¶ 61-71). Pursuant to

3

The facts stated herein are drawn primarily from the Amended Complaint, the operative
pleading in this matter (“Am. Compl.” (Dkt. #41)). Facts are also drawn from former
Defendants Alan Honig’s and Martha Wasserman’s Memorandum of Law in Support of
Motion for Sanctions as a Result of Fraud by Plaintiff Robyn Abraham (“Sanctions
Motion” (Dkt. #236)), including the supporting declarations of Ira S. Sacks, Esq. (“Sacks
Decl.” (Dkt. #234)) and Duc Nguyen (“Nguyen Decl.” (Dkt. #235)); and Defendant Abby
Leigh’s Memorandum of Law in Support of Joinder in the Sanctions Motion (the “Leigh
Joinder” (Dkt. #264)). The Court recognizes that, in a subsequent decision, it granted
summary judgment in favor of the Leigh Defendants, thereby finding insufficient proof
of certain of Plaintiff’s allegations. See Abraham v. Leigh, No. 17 Civ. 5429 (KPF), 2020
WL 3833424 (S.D.N.Y. July 8, 2020), reconsideration denied, No. 17 Civ. 5429 (KPF),
2020 WL 5095655 (S.D.N.Y. Aug. 28, 2020). However, at the time Defendant’s
sanctions motion was filed, the Amended Complaint was still the operative pleading.
For ease of reference, the Court refers to Defendant’s Application for Attorney Fees and
Costs as “Def. Br.” (Dkt. #407), and the supporting declaration of Michael J. Broadbent
as the “Broadbent Decl.” (Dkt. 408); Plaintiff’s opposition brief as “Pl. Opp.” (Dkt. #426);
and Defendant’s reply brief as “Def. Reply” (Dkt. #440).

2

the Talent Agreement, upon Mr. Leigh’s approval, Mr. Leigh would, within five
business days of provision of Talent confirmation by Plaintiff, perform his
obligations under the Talent Agreement. (Id. at ¶ 71). However, instead of
performing these obligations, Mr. Leigh modified certain terms of Talent
Agreement to require, inter alia, written confirmation from the recruited Talent.
(Id. at ¶¶ 72-77).
Plaintiff alleges that, before the Talent Agreement expired, she obtained
written letters of intent from the Talent pre-approved by Mr. Leigh before his
death. (Am. Comp. ¶ 98). When Mr. Leigh passed away on March 16, 2014
(during the term of the Talent Agreement), his widow — Defendant Leigh
here — was named Executrix of the Leigh Estate. (Id. at ¶ 78). On July 11,
2014, Plaintiff’s counsel sent a letter to Defendant’s counsel, requesting that
the Leigh Estate (i) fully acknowledge Plaintiff’s performance and (ii) perform in
accordance with the terms of the Talent Agreement. (Id. at ¶ 99). On July 20,
2014, Defendant’s counsel responded to the letter and, it is alleged, repudiated
the Talent Agreement between Plaintiff and Mr. Leigh. (Id. at ¶ 100). The
response stated that if Plaintiff wished to submit a proposal for a 2015 revival
of MOLM, the proposal would be considered “in good faith.” (Id. at ¶ 101).
Significantly, however, Plaintiff would have to pay a $50,000 non-refundable
advance against royalties in order to have such a proposal considered. (Id.).
By 2017, Plaintiff had not recovered what she was allegedly due under
the Talent Agreement. Thereafter, Plaintiff brought suit against the three
holders of the rights to MOLM — Defendant, in her capacity as Executrix of the

3

Estate of Mitch Leigh; Martha Wasserman, in her capacity as Executrix of the
Estate of Dale Wasserman; and Hellen Darion, in her capacity as Executrix of
the Estate of Joseph Darion — as well as Alan Honig, who had served as an
accountant to the authors of MOLM. (See generally Am. Compl.). Plaintiff
specifically alleged a breach of contract claim against Defendant Leigh,
fraudulent inducement claims against former Defendants Wasserman and
Honig, and tortious interference and promissory estoppel against all
Defendants. (Id. at ¶¶ 143-77).
B.

Procedural History
This case has an especially complicated procedural history that is

discussed at length in several prior opinions, all of which are incorporated
herein by reference. See Abraham v. Leigh, No. 17 Civ. 5429 (KPF), 2020 WL
5095655 (S.D.N.Y. Aug. 28, 2020) (opinion denying Plaintiff’s motions for
reconsideration, unsealing of certain materials, and recusal); Abraham v. Leigh,
No. 17 Civ. 5429 (KPF), 2020 WL 3833424 (S.D.N.Y. July 8, 2020) (opinion
granting Leigh Defendants’ motion for summary judgment); Abraham v. Leigh,
No. 17 Civ. 5429 (KPF), 2019 WL 4256369 (S.D.N.Y. Sept. 9, 2019) (opinion
denying Plaintiff’s motion to dismiss counterclaims); Abraham v. Leigh, No. 17
Civ. 5429 (KPF), 2018 WL 3632520 (S.D.N.Y. July 30, 2018) (opinion denying
motions for reconsideration of prior opinion granting in part and denying in
part Defendants’ motions to dismiss). The Court focuses in this Opinion on the
facts and procedural history undergirding the imposition of sanctions on
Plaintiff.

4

1.

Initial Concerns Regarding the Authenticity of Plaintiff’s
Productions and the GoDaddy Theory

Plaintiff filed this action on July 18, 2017. (Dkt. #1). She then filed the
Amended Complaint on September 15, 2017, after receiving leave to do so from
the Court. (Dkt. #37, 40-41). In an oral decision issued on June 14, 2018, the
Court granted in part and denied in part several motions to dismiss the
Amended Complaint filed by those defendants then in the case (collectively,
“Defendants”). (Dkt. #65 (order memorializing decision); Dkt. #78 (transcript of
decision) (“June 14, 2018 Tr.”)). As relevant here, the Court denied Defendant
Leigh’s motion to dismiss Plaintiff’s breach of contract claim; all other claims
against Defendant were dismissed. (Dkt. #65 (order memorializing decision);
June 14, 2018 Tr.).
As the parties proceeded through discovery, various disputes arose. On
November 30, 2018, counsel for former Defendants Martha Wasserman and
Alan Honig wrote to the Court to express concerns that Plaintiff’s production of
certain PDF-format emails bore indicia of fraud, because, inter alia, the PDFformat emails were not produced with any metadata, nor were they produced
by any other party, including putative parties to the communication. (See
Sacks Decl. ¶ 56; id., Ex. 34). 4 Plaintiff’s former counsel at Arnold & Porter
LLP subsequently advised counsel to Wasserman and Honig that the
corresponding native-format files had been lost due to a crash of one or more

4

Plaintiff’s discovery production contained emails in two different file types: (i) email
documents in their native formats with associated metadata; and (ii) PDF-format email
documents without associated metadata, the latter of which are at issue here. (Sacks
Decl. ¶ 6).

5

servers maintained by web host and domain registrar GoDaddy.com LLC (the
“GoDaddy Theory”). (See Dkt. #150-3). 5 Accepting this explanation,
Wasserman and Honig served a document production subpoena on GoDaddy
(see Dkt. #150-2), and also requested that the Court permit Defendants to
“forensically examine Abraham’s computer and email accounts” (Sacks Decl.,
Ex. 34 at 2).
On December 18, 2018, the Court held a discovery conference
concerning this issue. (Dkt. #138 (transcript)). Plaintiff’s former counsel
expanded on the GoDaddy Theory, asseverating that because “there was
trouble with the servers that Ms. Abraham used, [ ] GoDaddy.com,” the nativeformat versions of some of the PDF-format emails no longer existed, “but they
did exist in 2014, when they were preserved and printed.” (Id. at 14).
Plaintiff’s former counsel assured the Court that there was no other reason as
to why these emails no longer existed in their native format. (Id. at 17).
Following additional argument, the Court permitted Defendants to serve a
subpoena on GoDaddy, but denied Defendants’ request for a forensic
examination, with leave to renew the request depending on the information
gathered from Plaintiff’s deposition. (Id. at 24-26).
2.

Plaintiff’s Deposition and the Broken Computer Theory

Plaintiff was deposed on January 17, 2019. (See Sacks Decl. ¶ 59; id.,
Ex. 36). There, Plaintiff disclosed for the first time that the laptop she used in

5

Plaintiff sent and received emails primarily through two email accounts related to her
businesses, both of which were hosted by GoDaddy. (Sacks Decl. ¶ 7).

6

2013 and 2014 had been damaged (the “Broken Computer Theory”), because
“somebody slammed it in an overhead bin and that was pretty much the end of
it.” (Id., Ex. 36 at 7-8). Plaintiff further testified that her attorneys had been
aware that her laptop had been crushed on a flight. (Id., Ex. 36 at 8). Plaintiff
clarified that this was the laptop that she used when she provided relevant
emails to her attorneys in London back in 2014. (Id., Ex. 36 at 10). In
addition, Plaintiff testified that: (i) she had provided the broken laptop to her
“computer expert [Steve Bardfield] who tried to pull the data off of it, and he
said he was not successful”; (ii) she no longer had the laptop because she left it
with Bardfield, who “used it for parts” with her knowledge and assent; and
(iii) she contacted Bardfield after filing this lawsuit to see if he still maintained
the laptop and was told that “it’s gone.” (See id., Ex. 36 at 10-11).
On February 11, 2019, Plaintiff produced photographs purportedly
showing the damage to her laptop and a copy of an invoice from Steve Bardfield
dated September 27, 2014. (See Sacks Decl., Ex. 37). The invoice stated that
(i) the laptop had been “dropped”; (ii) “Case damaged, DVD drive broken,
exhaust fan port broken, display broken”; and (iii) Plaintiff had been charged
for data recovery and analysis, but had received a discount on the invoice due
to a credit for “[o]ld computer for parts.” (See id., Ex. 37). There was no
indication on the invoice that the hard drive, from which electronically stored
information could be recovered, had been damaged in any way. (Id. at ¶ 62).

7

3.

The Motion for Sanctions and the Idiosyncratic Email
Practices Theory

One week after Plaintiff’s deposition, on January 23, 2019, counsel for
Wasserman and Honig filed a pre-motion letter seeking leave to file a motion for
sanctions against Plaintiff for allegedly perpetrating a fraud on the Court in
connection with the PDF-format email documents. (Dkt. #144). On June 10,
2019, the Court granted Wasserman and Honig leave to file a motion for
sanctions against Plaintiff (Dkt. #230), which they did on June 12, 2019 (Dkt.
#233-236). On July 17, 2019, Defendant Leigh joined in the motion. (Dkt.
#263-264). 6
As noted, the conduct at issue centered on Plaintiff’s production of
certain emails in PDF format, without metadata and without a corresponding
native-format version. (Sacks Decl. ¶ 6). The motion specifically identified 33
such documents. (Id.). Wasserman and Honig also obtained expert testimony
from Duc Nguyen, a certified digital forensic examiner, who explained that at
least three of those documents were not ones that originally existed in native
format. (Nguyen Decl. ¶¶ 12-42). From this and several other indicia of fraud,
Wasserman and Honig concluded that 13 of the 33 PDF-format documents
were demonstrably fake or fraudulent. (Sacks Decl. ¶ 6). With Defendant
Leigh joining, they alleged that Plaintiff perpetrated a fraud on the Court by

6

While Plaintiff belittles Defendant’s work in this regard as a “One (1) Page Joinder
Motion” (Pl. Opp. 1, 10), it is in fact the case that Defendant’s joinder application
included a separate memorandum of law, an attorney declaration, and several exhibits
(see Leigh Joinder). Plaintiff also overlooks Defendant’s counsel’s extensive work in
preparation for oral argument before the Court on October 22, 2019.

8

creating or altering documents, allowing the destruction of her personal laptop,
advancing a false and frivolous excuse for missing or altered documents,
offering perjured testimony regarding the documents’ authenticity, and
presenting false documents to counsel and the Court. (See Sanctions
Motion 2; Leigh Joinder 1).
On August 9, 2019, with the assistance of a new team of attorneys,
Plaintiff filed her papers in opposition to the motion for sanctions and to
Defendant’s joinder in that motion. (Dkt. #273-292). In Plaintiff’s opposition
submission, she offered a third explanation (the “Idiosyncratic Email Practices
Theory”), positing that the lack of native-format emails could have happened
for “many reasons,” “including a message being accidentally deleted by
Abraham or a message being recalled by the Defendants.” (Dkt. #291 at 1617). Regarding the latter possibility, Plaintiff suggested, without evidentiary
support, that “Defendants themselves deleted or retrieved/recalled emails they
did not want to be submitted into evidence.” (Id. at 17). Furthermore, Plaintiff
suggested that anomalies in certain documents were due to the sheer volume
of emails she sent on a given day, and her practice of sending an email
intended to be saved in draft form and then sending it out again in a final
version later in the day. (Id.).
On August 23, 2019, Defendants filed their reply papers. (Dkt. #303305, 307). They then diverged: On October 4, 2019, in connection with their
settlements with Plaintiff, Defendants Wasserman and Honig were permitted to
withdraw their motion for sanctions against Plaintiff; however, the Court made

9

clear that the withdrawal would have no impact on Defendant Leigh’s pending
motion for sanctions, in which she joined and adopted Honig’s and
Wasserman’s briefing. (Dkt. #348).
On October 22, 2019, the Court held an evidentiary hearing to resolve
Defendant’s motion for sanctions. (See generally Dkt. #409 (“October 22, 2019
Tr.”)). Plaintiff’s new counsel reasserted the GoDaddy, Broken Computer, and
Idiosyncratic Email Practices Theories to the Court. Indeed, counsel added still
another wrinkle to the evidentiary record by announcing that “at least two [of
Plaintiff’s] computers … were damaged.” (Id. at 30). This news about a second
damaged computer led to the following exchange with Plaintiff’s counsel:
THE COURT: I’m amazed you didn’t try to substantiate
[Mr. Bardfield’s statements to counsel about a second
damaged computer] with a declaration from him that
indeed there were two computers. They were both
damaged beyond repair. I only have one referenced
here.
MS. [KERWICK]: He gave me the affidavit that he was
willing to give me, but he confirmed with me when I was
pestering him for the black box, he said there [were] at
least two.
THE COURT: Yes, that’s the affidavit he wasn’t willing
to give to you, and maybe I should draw something from
that.
(Id. at 31). When asked whether, at any time, Plaintiff ever modified or caused
anyone else to modify any of the PDF-format emails at issue, Plaintiff directly
responded to the Court that “[a]t no time did [she] modify or cause anyone else
to modify any email at any time ever.” (Id. at 59).

10

The Court ultimately found that, for various reasons, Plaintiff’s theories
could not explain the anomalies identified, such as the existence of two
versions of an email –– one in PDF-format produced by Plaintiff, and the other
in native format produced by Defendant –– with the same time stamps, and the
same addressees, but divergent content. (October 22, 2019 Tr. 42, 66-68).
Reviewing the record before it, the Court concluded that the only plausible
explanation for the variances was that the documents at issue had been altered
by Plaintiff:
The strongest argument for the defendants is that I have
a bunch of exhibits that I can’t explain other than by
finding that somebody modified them; that they were
altered. And ultimately, I conclude that they were
altered by Ms. Abraham.
Today I noted that counsel was very careful, plaintiff’s
counsel, in how she phrased her arguments on this
point. That it was Ms. Abraham’s position, that Ms.
Abraham would go to her grave believing, and
everything was done in terms of Ms. Abraham’s beliefs.
So I went straight to the source, and I asked Ms.
Abraham as plainly as I could. She answered, and I do
not believe her, and I believe that she perjured herself
before me today. And that echoed something that Mr.
Broadbent said to me when he referred to certain of
these theories or certain of these presentations as
unapologetic. They are. At some point in this process,
Ms. Abraham should just admit that these documents
are doctored and walk away from it, but even now before
me she doubles and triples and quadruples down.
That’s what I’m left with. I’m left with the fact that these
things are fabricated and that I believe that she
fabricated them.
(Id. at 68-69).
With this finding, the Court excluded from evidence the 33 documents
produced by Plaintiff in PDF-format only during discovery. (October 22, 2019
11

Tr. 68-71). The Court also ordered that Plaintiff pay Defendant’s attorneys’
fees and costs incurred as a result of the Sanctioned Documents, including the
time spent investigating the provenance of the Sanctioned Documents,
reviewing electronic information related to the Sanctioned Documents,
retaining forensic expertise, and any other preparations that could be fairly
traced to the Sanctioned Documents. (Id. at 71). While the Court declined to
give a spoliation instruction to the jury, it did order that Plaintiff could be
crossed at trial on the finding of perjury. (Id. at 71-72). Finally, the Court
ordered the parties to confer on a schedule for submissions on fees and costs.
(Id. at 72; see generally Dkt. #371 (order memorializing decision)).
As of February 3, 2020, the parties’ briefing concerning Defendant’s
application for attorneys’ fees and costs was fully submitted to the Court. (See
Dkt. #407, 408, 426, 427, 440).
DISCUSSION
A.

Overview of the Parties’ Arguments
Both sides have endeavored to tailor their arguments to the Court’s

October 22, 2019 sanctions decision. For Defendant’s part, this includes
explaining why the Sanctioned Documents, which are neither to nor from
Mitch Leigh, nonetheless impacted the manner in which she defended herself
in the instant litigation. (See Pl. Opp. 11 (outlining Plaintiff’s argument that no
Leigh emails were altered)). On this point, Defendant credibly argues that the
Sanctioned Documents “affected [her] analysis of this dispute and thus her
litigation strategy, particularly because a number of the emails involve third

12

parties and appear to give credence to otherwise-unsupported theories of the
Plaintiff.” (Def. Br. 3; see also Def. Reply 6 (“The altered emails were produced
during discovery, affected the narrative of this case, and required the Executrix
to investigate, strategize, and respond. Specifically, as set forth in the
Executrix’s opening submission, the Executrix has been damaged to the extent
that upwards of $55,000 in legal fees and costs have been expended as a result
of Plaintiff’s altered emails.”)).
Defendant has also striven to fit the damages she seeks into the
framework articulated by the Court at the October 22, 2019 hearing. (See
October 22, 2019 Tr. 70-71). In this regard, Defendant has limited her claim
for fees to:
(a) counsel and staff fees for those working directly on
the Sanctioned Documents, (b) fees incurred after
November 26, 2018, when Plaintiff was put on notice
that her fraud had been detected, although fees
associated with the Sanctioned Documents accrued
prior, and (c) fees for which the entry either explicitly
mentions the Sanctioned Documents or sanctions
motion, or a portion of the time is clearly assignable to
issues relating to the Sanctioned Documents.
(Def. Br. 6-7). Defendant also seeks $637.10 in travel costs related to the
Court’s October 22 sanctions hearing. (Id. at 7).
Plaintiff offers several reasons why neither fees nor costs should be
imposed in favor of Defendant. (See generally Pl. Opp.). The Court has already
addressed Plaintiff’s “one-page joinder” argument in this Opinion, but a
corollary to this argument is Plaintiff’s contention that Defendant’s sanctions
motion is improper at its core because it was initially brought by, and then

13

withdrawn by, Defendants Honig and Wasserman. (Id. at 1, 5, 14). The
chronology is accurate, but not the logical conclusion: Defendant Leigh had an
independent right to seek redress because of the Sanctioned Documents, and a
correlative right to join in the legal arguments made by her co-defendants.
Precisely for this reason, the Court made clear in granting the application for
withdrawal by Honig and Wasserman that such withdrawal “will have no
impact on Defendant Leigh’s pending motion for sanctions, in which Defendant
Leigh has joined Defendants Honig’s and Wasserman’s briefing.” (Dkt. #348).
Plaintiff also advances two arguments why the Court’s October 22, 2019
sanctions decision was incorrect: first, that Defendant has “unclean hands”
because of her own purported document destruction, and second, that the
email anomalies may have been the product of unspecified cyberattacks on
Plaintiff’s computer. (See, e.g., Pl. Opp. 2, 7). The former claim has been
previously raised and rejected; any loss or destruction of documents by
Defendants in this case was undertaken before the instant lawsuit was filed,
and in the absence of a litigation hold. 7 The latter claim is now a fourth theory
to explain why the Sanctioned Documents were altered, and it founders on its
lack of substantiation. In short, to the extent that Plaintiff is asking the Court
to reconsider its prior decision, Plaintiff has not provided the Court with any
reason to do so. See Ricatto v. M3 Innovations Unlimited, Inc., No. 18 Civ. 8404
(KPF), 2020 WL 2306480, at *2 (S.D.N.Y. May 8, 2020) (“Compelling reasons for

7

Even if true, the claim that Defendant destroyed documents would not give Plaintiff ex
ante a credit against future sanctionable behavior.

14

granting a motion for reconsideration are limited to ‘an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.’” (quoting Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992))). 8
B.

Applicable Law
Federal Rule of Civil Procedure 37 provides that when “a party ... fails to

obey an order to provide or permit discovery ... the court where the action is
pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Such just
orders may include “striking pleadings in whole or in part; ... dismissing the
action or proceeding in whole or in part; [or] rendering a default judgment
against the disobedient party.” Id. Further, “the court must order the
disobedient party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless
the failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C) (emphasis added).
A court may also impose sanctions on a party for misconduct in
discovery under its inherent power to manage its own affairs. Hawley v.
Mphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014) (explaining that in order to
impose sanctions under its inherent power, a court must find that a plaintiff

8

Plaintiff falsely accuses Defendant of “stoop[ing] so low as to inject and weaponize”
unrelated information regarding Plaintiff “for the purpose of smearing Plaintiff’s
excellent name and reputation, and deterring Plaintiff’s counsel.” (Pl. Opp. 6). As an
initial matter, Defendant Leigh had nothing to do with the information about which
Plaintiff now complains. And in a prior Opinion, this Court explained why these
disturbing attacks by Plaintiff miss their factual and legal marks. See Abraham v.
Leigh, No. 17 Civ. 5429 (KPF), 2020 WL 5095655, at *1-2 (S.D.N.Y. Aug. 28, 2020).

15

has acted in “bad faith, vexatiously, wantonly, or for oppressive reasons”); see
generally Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186-87
(2017); Va. Props., LLC v. T-Mobile Ne. LLC, 865 F.3d 110, 114 (2d Cir.
2017). In contrast with Rule 37, a court’s inherent power to impose sanctions
includes the power to impose “attorney’s fees representing the entire cost of
litigation.” Shanchun Yu v. Diguojiaoyu, Inc., No. 18 Civ. 7303 (JMF), 2019 WL
6174204, at *5 (S.D.N.Y. Nov. 20, 2019) (emphasis added) (citing Chambers v.
NASCO, Inc., 501 U.S. 32, 45 (1991)).
In the instant case, the Court imposed sanctions on Plaintiff pursuant to
both Rule 37 and its inherent powers. (See Dkt. #371 (order memorializing
decision); see also October 22, 2019 Tr. 72). Absent a showing of substantial
justification or injustice, this Court must order Plaintiff to pay the reasonable
expenses caused by her sanctionable conduct. See Novak v. Wolpoff &
Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008) (per curiam) (declining to hold
that “Rule 37(b)(2) expenses are mandatory,” but finding that “[t]he use of the
word ‘shall’ certainly suggests that an award of expenses is mandatory unless
one of the two exceptions — substantial justification or other circumstances —
applies”). In this application, Defendant “‘bears the burden of demonstrating
that its requested fees are reasonable.’” Figueroa v. W.M. Barr & Co., Inc.,
No. 18 Civ. 11187 (JGK) (KHP), 2020 WL 2319129, at *2 (S.D.N.Y. May 11,
2020) (quoting TufAmerica Inc. v. Diamond, No. 12 Civ. 3529 (AJN), 2016 WL
1029553, at *3 (S.D.N.Y. Mar. 9, 2016)), reconsideration granted in part, 2016

16

WL 3866578 (S.D.N.Y. July 12, 2016), and 2018 WL 401510 (S.D.N.Y. Jan. 12,
2018)).
Attorneys’ fees are awarded by determining the “‘presumptively
reasonable fee,’” often referred to as the “lodestar.” Millea v. Metro-North R.R.
Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens
Neighborhood Ass’n v. Cty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)); see
also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552-53 (2010). This fee is
calculated by multiplying the “reasonable hourly rate and the reasonable
number of hours required by the case.” Millea, 658 F.3d at 166. Courts may,
only after the initial calculation of the presumptively reasonable fee, adjust the
total when it “does not adequately take into account a factor that may properly
be considered in determining a reasonable fee.” Lilly v. City of New York, 934
F.3d 222, 230 (2d Cir. 2019) (citing Millea, 658 F.3d at 167). More
fundamentally, the Second Circuit has recognized that a district court
exercises considerable discretion in awarding attorneys’ fees. See Millea, 658
F.3d at 166; see also Arbor Hill, 522 F.3d at 190.
When evaluating reasonable hourly rates, courts look at “the rate a
paying client would be willing to pay,” and take into account “all case-specific
variables.” Arbor Hill, 522 F.3d at 189-90. It is well-settled that “a reasonable,
paying client wishes to spend the minimum necessary to litigate the case
effectively,” and that “such an individual might be able to negotiate with his or
her attorneys, using their desire to obtain the reputational benefits that might
accrue from being associated with the case.” Id. The Second Circuit’s “forum

17

rule” also requires courts to “generally use ‘the hourly rates employed in the
district in which the reviewing court sits’ in calculating the presumptively
reasonable fee.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir.
2009) (quoting Arbor Hill, 493 F.3d at 119); see also Miroglio S.P.A. v. Conway
Stores, Inc., 629 F. Supp. 2d 307, 314 (S.D.N.Y. 2009). Finally, courts in this
District have recognized that an “attorney’s customary billing rate for feepaying clients is ordinarily the best evidence of” a reasonable hourly rate. In re
Stock Exchs. Options Trading Antitrust Litig., No. 99 Civ. 962 (RCC), 2006 WL
3498590, at *9 (S.D.N.Y. Dec. 4, 2006).
When evaluating the number of hours, a court must make “a
conscientious and detailed inquiry into the validity of the representations that
a certain number of hours were usefully and reasonably expended.” Haley v.
Pataki, 106 F.3d 478, 484 (2d Cir. 1997) (internal quotation marks and citation
omitted). In addition, a court should examine the hours expended by counsel
with a view to the value of the work product to the client’s case. See Lunday v.
City of Albany, 42 F.3d 131, 133 (2d Cir. 1994) (per curiam). The Court is to
exclude “excessive, redundant[,] or otherwise unnecessary hours, as well as
hours dedicated to severable unsuccessful claims.” Quaratino v. Tiffany & Co.,
166 F.3d 422, 425 (2d Cir. 1999).
In determining whether hours are excessive, “the critical inquiry is
‘whether, at the time the work was performed, a reasonable attorney would
have engaged in similar time expenditures.’” Samms v. Abrams, 198 F. Supp.
3d 311, 322 (S.D.N.Y. 2016) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d

18

Cir. 1992)). And where “the billing records are voluminous, it is less important
that judges attain exactitude, than that they use their experience with the case,
as well as their experience with the practice of law, to assess the
reasonableness of the hours spent.” Yea Kim v. 167 Nail Plaza, Inc., No. 05 Civ.
8560 (GBD) (GWG), 2009 WL 77876, at *4 (S.D.N.Y. Jan. 12, 2009) (internal
quotation marks and citation omitted). A court also retains the discretion to
make across-the-board percentage reductions to exclude unreasonable hours,
colloquially referred to as “trimming the fat.” See In re Agent Orange Prod. Liab.
Litig., 818 F.2d 226, 237 (2d Cir. 1987); E.S. v. Katonah-Lewisboro Sch. Dist.,
796 F. Supp. 2d 421, 431 (S.D.N.Y. 2011), aff’d sub nom. E.S. ex rel. B.S. v.
Katonah-Lewisboro Sch. Dist., 487 F. App’x 619 (2d Cir. 2012) (summary order).
A court also looks at the nature of the legal matter and context of the fee
award in considering what is a reasonable rate and reasonable time spent on a
matter. Figueroa, 2020 WL 2319129, at *3. The Second Circuit has suggested
that courts should consider factors including “the experience, reputation, and
ability of the attorneys,” “awards in similar cases,” and more broadly,
the purpose of the award; that is, a different presumptively
reasonable fee may be warranted if the fee is being
awarded as a sanction for misconduct than if the fee is
being awarded in connection with a successful outcome in
a statutory fee-shifting case in order to make its
determination.
Arbor Hill, 522 F.3d at 190 (citing 12 factors enumerated in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on

19

other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 (1989)); see also
Figueroa, 2020 WL 2319129, at *3. 9
C.

Calculating Reasonable Attorneys’ Fees
In this application, Defendant seeks attorneys’ fees in the amount of

$54,654.50 and costs in the amount of $637.10, as a result of work in
connection with the Sanctioned Documents. (Def. Br. 4-5). Specifically,
Defendant seeks recovery of fees paid to the following legal professionals in the
following amounts:

9

The twelve factors enumerated in Johnson are (i) the time and labor required; (ii) the
novelty and difficulty of the questions; (iii) the level of skill required to perform the legal
service properly; (iv) the preclusion of employment by the attorney due to acceptance of
the case; (v) the attorney’s customary hourly rate; (vi) whether the fee is fixed or
contingent; (vii) the time limitations imposed by the client or the circumstances;
(viii) the amount involved in the case and results obtained; (ix) the experience,
reputation, and ability of the attorneys; (x) the “undesirability” of the case; (xi) the
nature and length of the professional relationship with the client; and (xii) awards in
similar cases. See Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87 (1989)).
This Court has previously noted that after Arbor Hill was decided, the Supreme Court
cast doubt on the usefulness of the Johnson factors as a methodology for calculating
attorneys’ fees, stating that the method “gave very little actual guidance to district
courts.” Echevarria v. Insight Med., P.C., 102 F. Supp. 3d 511, 515 n.2 (S.D.N.Y. 2015)
(quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (internal quotation
marks omitted)). However, as the Court also noted, the Perdue court focused on
enhancements to an attorneys’ fees award applied by the district court; while the Arbor
Hill decision, at its core, simply instructs district courts to take the Johnson factors
(and other factors) into account when determining the reasonable hourly rate, and then
to use that reasonable hourly rate to calculate the presumptively reasonable fee. Id.
Furthermore, Arbor Hill has yet to be overruled by the Second Circuit. In fact, the
Second Circuit recently confirmed the validity of Arbor Hill and the use of the Johnson
factors in calculating the lodestar amount as a threshold matter, rather than to
enhance or cut the lodestar amount itself. See Lilly v. City of New York, 934 F.3d 222,
231 (2d Cir. 2019) (explaining how the Perdue court confirmed the long-standing
approach to calculating attorney’s fees endorsed by the Second Circuit in Arbor Hill).

20

Rate

Hours
Incurred on
Sanctioned
Documents

Amount

Professional

Title

Years of
Experience

H. Robert
Fiebach
Michael J.
Broadbent
Harper Seldin
Gailmarie Rizzo
Technological
Support
Total

Shareholder/
Senior Counsel

55

$870

12.4

$10,788.00

Member

9

$400/435 10

89.3

$38,345.00

Associate
Paralegal
E-Discovery
Experts

5
36

$365
$200 11

7.3
10.5

$2,664.50
$2,100.00

N/A

$250-345

2.8

$757.00
$54,654.50

(Broadbent Decl. ¶¶ 24, 39). Defendant argues that these amounts are
reasonable given that the Sanctioned Documents pervaded every aspect of this
case, as discussed above. (Def. Br. 3). The Court will address the requested
reasonable hourly rates and hours incurred in turn.
1.

Determining the Reasonable Hourly Rate

While multiple Cozen O’Connor attorneys worked on matters related to
the Sanctioned Documents, Defendant Leigh requests an award based on the
fees of the three primary attorneys. (Broadbent Decl. ¶¶ 14-16). The Court
notes at the outset that Defendant herself approved the hourly rates now
requested and, as of the date her fee application was submitted, had paid all of
the time billed at those rates prior to September 2019. (Def. Br. 5; Broadbent
Decl. ¶¶ 14-15). While payment of fees by clients is “solid evidence” of their
reasonableness in the market, Bleecker Charles Co. v. 350 Bleecker St. Apt.

10

Mr. Broadbent’s rate was $400 in 2018 and $435 in 2019. (Broadbent Decl. ¶ 24 n.6).

11

Ms. Rizzo’s standard rate, and the rate paid by the Executrix, is $265, but it has been
adjusted down to $200 for this fee application. (Broadbent Decl. ¶ 24 n.7 (citing
Winklevoss Capital Fund, LLC v. Shrem, 360 F. Supp. 3d 251, 257 (S.D.N.Y. 2019)
(reducing $265 rate to $200 for paralegal with “extensive experience” to be consistent
with prior decisions in the Southern District of New York))).

21

Corp., 212 F. Supp. 2d 226, 230-31 (S.D.N.Y. 2002), the Court must still
exercise its discretion and look to the prevailing rates within this District to
determine the reasonableness of the proposed rates. See A.V.E.L.A., Inc. v.
Estate of Monroe, No. 12 Civ. 4828 (KPF) (JCF), 2014 WL 3610902, at *2
(S.D.N.Y. July 18, 2014) (“[T]he actual billing arrangement is a significant,
though not necessarily controlling, factor in determining what fee is
‘reasonable.’” (alteration in original) (internal quotation marks omitted) (quoting
Crescent Publ’g Grp., Inc. v. Playboy Enters., Inc., 246 F.3d 142, 151 (2d Cir.
2001))).
The Court begins with the hourly rate requested by senior counsel
H. Robert Fiebach, who billed 12.4 hours with respect to work on the
Sanctioned Documents. As a Shareholder and Senior Counsel at Cozen
O’Connor with 55 years of experience, Mr. Fiebach’s position is equivalent to a
senior or equity partner in a law partnership. (Broadbent Decl. ¶ 16 n.5). As
such, the Court looks to rates “in line with ... prevailing [rates] in the
community for similar services by lawyers of reasonably comparable skill,
expertise and reputation.” McDonald ex rel. Prendergast v. Pension Plan of the
NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (alterations in
original) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
The Court believes the requested hourly rate of $870 for Mr. Fiebach is
high, given the nature of his work related to the Sanctioned Documents. See
S.E.C. v. Yorkville Advisors, LLC, No. 12 Civ. 7728 (GBD) (HBP), 2015 WL
855796, at *19 (S.D.N.Y. Feb. 27, 2015) (“The prevailing market rates for

22

attorneys and paralegals in the Southern District of New York for fees incurred
on discovery-related motions have ranged from $450 to $600 for partners,
$220 to $400 for associates and $100 to $200 for paralegals.”). However, the
Court also recognizes Mr. Fiebach’s status as senior counsel to the firm’s
Commercial Litigation Department and co-chair of its Legal Malpractice Group.
(Broadbent Decl., Ex. A at 2). In comparable complex commercial or
intellectual property cases, rates for partners with similar experience and
standing have varied. Compare A.V.E.L.A., Inc., 2014 WL 3610902, at *2
(discussing Barclays Capital Inc. v. Theflyonthewall.com, No. 06 Civ. 4908
(DLC), 2010 WL 2640095 (S.D.N.Y. June 30, 2010), where the court approved
an average hourly rate of $838 for a senior partner who had been practicing
since 1973 and was head of his firm’s Intellectual Property and Media practice
group, with Diplomatic Man, Inc. v. Nike, Inc., No. 08 Civ. 139 (GEL), 2009 WL
935674, at *5-6 (S.D.N.Y. Apr. 7, 2009), where the court found that $650 per
hour was “perfectly reasonable” for the head of a large firm’s commercial
litigation group who had been practicing law since 1972).
Taking into account Mr. Fiebach’s lengthy experience, the comparatively
modest amount of time he billed to matters attributable to the Sanctioned
Documents (including attending a deposition and reviewing filings), and the
relatively large size of his law firm, the Court concludes that an hourly rate of
$725 is reasonable here. See Tiffany & Co. v. Costco Wholesale Corp., No. 13
Civ. 1041 (LTS) (DCF), 2019 WL 120765, at *10 (S.D.N.Y. Jan. 7, 2019) (finding
hourly rates between $625 and $845 for a partner “are reasonable considering

23

the prevailing rates for firms engaging in complex litigation in this district”);
Malletier v. Artex Creative Int’l Corp., 687 F. Supp. 2d 347, 360-61 (S.D.N.Y.
2010) (finding rates “between $475 and $540” reasonable for a partner with 24
years of experience in “intellectual property law at a large Manhattan law
firm”).
Mr. Broadbent is a “Member” at Cozen O’Connor, which is equivalent to a
junior partner in a law partnership, and has nine years of experience in
complex commercial disputes. (Broadbent Decl. ¶¶ 16 n.5, 19). It is he,
among Defendant’s counsel, who has spent the most time addressing issues
raised by the Sanctioned Documents. Upon learning of the potential fraud by
Plaintiff in November 2018, Mr. Broadbent took the lead in analyzing the facts
and issues related to the Sanctioned Documents, including preparation of the
briefs and argument at the October 22, 2019 hearing. (Id. at ¶ 20). Mr.
Broadbent’s rate was $400 in 2018 and $435 in 2019, and Defendant
accordingly requests those rates for the hours worked incurred in those
respective years. The Court agrees that these rates are reasonable in light of
the generally accepted hourly rates for junior partners in comparable cases in
this District, and given the substantive work Mr. Broadbent did in relation to
the Sanctioned Documents. See, e.g., Mazzei v. Money Store, No. 01 Civ. 5694
(JGK) (RLE), 2015 WL 2129675, at *3 (S.D.N.Y. May 6, 2015) (finding rate of
$450 per hour for attorneys with 15 to 20 years of experience in complex
litigation to be reasonable); Malletier, 687 F. Supp. 2d at 361 (“The hourly rates
of $390.00 to $470.00 charged by the associates and junior partner

24

representing Vuitton fall at the very top of the spectrum of reasonable hourly
rates for associates.”); In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467,
506-07 (S.D.N.Y. 2009) (finding reasonable a junior partner’s rate of $425).
Mr. Seldin, an associate at Cozen O’Conner with five years of experience,
requests a rate of $365 per hour. Mr. Seldin, who joined the firm in 2016,
provided research and drafting assistance with Defendant’s reply brief for this
motion. (Broadbent Decl. ¶ 21 & Ex. A). The Court will reduce Mr. Seldin’s
hourly rate slightly, to $325, based on a comparison of the nature of the work
he did with that of Mr. Broadbent, a junior partner with substantially more
experience and responsibilities in this case. See, e.g., Herbalist & Alchemist,
Inc. v. Alurent Prod., Inc., No. 16 Civ. 9204 (ER), 2018 WL 3329857, at *3
(S.D.N.Y. July 5, 2018) (holding that an hourly rate of $325 was reasonable for
a mid-level associate and was within the range of rates that have been
approved for law firm associates in this District); Malletier, 687 F. Supp. 2d at
361 (describing $390 rate as “at the very top of the spectrum” for associates,
even one demonstrably a specialist in intellectual property).
With respect to paralegal Gailmarie Rizzo, the Court finds that her
reduced rate of $200 an hour is reasonable. See H.B. Auto. Grp., Inc. v. Kia
Motors Am., Inc., 2018 WL 4017698, at *5 (S.D.N.Y. July 25, 2018) (reducing
senior paralegal with 18 years of relevant experience from approximately $215
to $200 per hour). Finally, the Court addresses the fees sought by three inhouse e-discovery experts at Cozen O’Connor, who billed at rates ranging from
$250 to $345. This Court believes it appropriate to classify these individuals

25

as litigation support personnel, whose billings are typically considered fees
rather than costs. See J.S. Nicol, Inc. v. Peking Handicraft, Inc., No. 03 Civ.
1548 (GBD) (AJP), 2008 WL 4613752, at *16 (S.D.N.Y. Oct. 17, 2008) (“Lawyers
often use litigation support specialists and receive reimbursement for such
services when awarded attorneys’ fees.” (collecting cases)); Rodriguez ex rel.
Kelly v. McLoughlin, 84 F. Supp. 2d 417, 427 (S.D.N.Y. 1999) (allowing recovery
for litigation manager and technical support); cf. Joint Stock Co. Channel One
Russia Worldwide v. Infomir LLC, No. 16 Civ. 1318 (GBD) (BCM), 2020 WL
2512045, at *5 (S.D.N.Y. May 15, 2020) (allowing recovery of outside expert
fees for “technical forensic services”); but cf. HTV Industries, Inc. v. Agarwal,
317 F. Supp. 3d 707, 726 (S.D.N.Y. 2018) (“Costs for shipping, filing fees,
process servers, and litigation support are recoverable.”).
Whether considered under the rubric of fees or costs, such individuals
are generally analogized to paralegals and awarded comparable hourly rates.
Cf. Song v. 47 Old Country, Inc., No. 09 Civ. 5566 (LDW) (SIL), 2015 WL
10641286, at *6 (E.D.N.Y. Oct. 1, 2015) (“Litigation support professionals are
generally awarded hourly rates consistent with paralegals.”), report and
recommendation adopted, No. 09 Civ. 5566 (LDW), 2016 WL 1425811 (E.D.N.Y.
Mar. 31, 2016). In this case, the Court has balanced the criticality of the ediscovery experts’ work to the issues in dispute, and the conservative billing of
their hours, with the paucity of information provided about each of them;
accordingly, the Court will permit recovery at the lower rate sought, $250 per
hour.

26

2.

Determining the Hours Reasonably Expended

Turning now to the determination of reasonable hours, the Court has
reviewed the relevant billing documents and accepts Defendant’s explanation
that the hours for which she seeks recovery were expended on:
a.

legal research and analysis;

b.

conferences to discuss strategies;

c.

reviewing discovery, both the Sanctioned
Documents as well as other documents for
comparison;

d.

carefully planning and preparing witnesses with
the possibility of sanctions looming but
undecided;

e.

drafting relevant research memoranda;

f.

drafting the relevant opening and responsive
briefs, including to identify the ways in which the
Sanctioned Documents impacted the Executrix’s
case preparations;

g.

orchestrating the electronic filing of the various
motion papers;

h.

reviewing and filing the numerous papers filed by
moving defendants and the Plaintiff, including
Plaintiff’s repeated attempts to move or
reschedule the sanctions hearing;

i.

preparing for cancelled or rescheduled hearings
related to the sanctions motions;

j.

addressing ancillary legal issues; and

k.

preparing for and arguing at the sanctions
hearing on October 22, 2019.

(Broadbent Decl. ¶ 36). The Court notes that Defendant also seeks to recover
21.7 hours of time billed for preparation of the instant fee petition, including

27

legal research and drafting; assembling, reviewing, analyzing, and calculating
two years’ worth of billing documentation; and internal discussions regarding
the above. (Id. at ¶ 37).
The Court recognizes and appreciates the conservative approach that
Defendant has taken in her fee petition, which includes limiting the fees sought
to three primary attorneys and associated support personnel, and reducing the
work for which fees are sought only to those activities most directly related to
the Sanctioned Documents. The Court also accepts Defendant’s explanation
for why such substantial legal fees were incurred in a case in which other
defendants took the laboring oar in preparing the initial sanctions motion
papers. (See, e.g., Broadbent Decl. ¶¶ 32-34 (noting, inter alia, the need to
prepare alternative defenses depending on whether the Sanctioned Documents
were admitted into evidence, and the “hurdles” erected by Plaintiff to resolving
the sanctions motion)).
In prior fee petitions, this Court has alternated between the use of an
across-the-board percentage reduction and the disallowance of certain hours
billed. Compare Gamero v. Koodo Sushi Corp., 328 F. Supp. 3d 165, 175
(S.D.N.Y. 2018) (disallowing certain time entries billed), with Marzullo v. Karmic
Release Ltd., No. 17 Civ. 7482 (KPF), 2018 WL 10741649, at *3 (S.D.N.Y.
Apr. 24, 2018) (imposing across-the-board reduction of 15%). Given the
reductions already implemented by Defendant, the Court believes that an
additional across-the-board percentage reduction is not necessary to arrive at a
reasonable number of hours. What is more, after carefully reviewing the billing

28

materials, the Court concludes that it will not disallow any of the individual
time entries. During its review, the Court noticed a few entries that, arguably,
reflected duplication of efforts by Attorneys Fiebach and Broadbent. However,
any such disallowance would be more than counterbalanced by the fees that
Defendant has not sought for the seven-page reply brief she filed in response to
Plaintiff’s many arguments in opposition. (Dkt. #440). In sum, the Court will
reduce certain of the hourly rates, but none of the hours billed, by Defendant’s
counsel.
Finally, the Court’s consideration of the Johnson factors also counsels in
favor of finding Defendant’s fee application to be reasonable. While Plaintiff
continues to deflect and deny, the record established conclusively that she
fabricated certain key emails and then lied to the Court about their
provenance. Her perfidy made a mockery of the Court’s orders; it lengthened
the case for all parties involved; it necessitated expert investigation and
substantial motion practice; and it elevated the costs to Defendant Leigh by
more than $55,000. The Court has found that Plaintiff engaged in
sanctionable behavior; the conservatively-estimated fees sought by Defendant
Leigh in this matter are an appropriate sanction.
As noted, the Court has accepted the hours billed, but has adjusted
certain of the rates. In consequence, it awards the following fees:

29

Revised
Rate

Hours
Allowed on
Sanctioned
Documents

Amount

Professional

Title

Years of
Experience

H. Robert
Fiebach
Michael J.
Broadbent
Harper Seldin
Gailmarie Rizzo
Technological
Support
Total

Shareholder/
Senior Counsel

55

$725

12.4

$8,990.00

Member

9

$400/435

89.3

$38,345.00

Associate
Paralegal
E-Discovery
Experts

5
36

$325
$200

7.3
10.5

$2,372.50
$2,100.00

N/A

$250

2.8

$700.00

D.

$52,507.50

Calculating Reasonable Costs
“[A]ttorney’s fees awards include those reasonable out-of-pocket

expenses incurred by attorneys and ordinarily charged to their clients.”
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (citation
omitted); see generally Chen v. E. Market Rest., Inc., No. 13 Civ. 3902 (HBP),
2018 WL 3970894, at *4-5 (S.D.N.Y. Aug. 20, 2018) (discussing compensable
costs). Here, Defendant seeks to recover $637.10 in costs, representing
transportation costs to and from the October 22, 2019 sanctions hearing.
Again, Defendant has been conservative in the costs she seeks. (See Broadbent
Decl. ¶ 41 (“The Executrix did not include costs associated with photocopying
or printing, electronic data storage, or research, although there are
undoubtedly costs for such items related to the Sanctioned Documents, and
such costs would be compensable.”)). Plaintiff offers no real defense to their
assessment, and the Court finds these costs to be reasonable and appropriate.
Accordingly, the Court awards Defendant $637.10 in costs.

30

CONCLUSION
For the reasons set forth in this Opinion and Order, the Court sanctions
Plaintiff and awards to Defendant Leigh attorneys’ fees in the amount of
$52,507.50 and costs in the amount of $637.10. Plaintiff is directed to pay
this sanction to Defendant Leigh, in care of her attorneys, within 30 days of the
date of this Opinion and Order.
The Clerk of Court is directed to terminate the motion at docket entry
407. In addition, the Court observes that an open motion at docket entry 400
was previously resolved, and it thus directs the Clerk of Court to terminate that
motion as well.
SO ORDERED.
Dated:

September 14, 2020
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

31